Cancellation during the probationary period

Have you received a notice of termination during your probationary period and are wondering what rights you have?

Many employees feel helpless when they are dismissed during their probationary period. Even if the probationary period is often perceived as a „period without rights“ - this is not true. There are definitely protective rights that also apply during the probationary period. Lawyer Martin Reichelt in Dresden will advise you on your options and check whether the dismissal was lawful.

A termination during the probationary period is a drastic experience for both parties. Legislation therefore makes it easier to terminate the employment relationship. However, there are also limits here that employers must observe.

What is the trial period?

The probationary period is a contractually agreed period at the beginning of the employment relationship during which both parties can check whether they are a good match. During the probationary period Shortened cancellation periods, which facilitates the termination of the employment relationship.

It is important to differentiate:

Agreed trial period (§ Section 622 (3) BGB)

Employers and employees can agree a probationary period of maximum six months agree. During this period, the cancellation period is two weeks - instead of the regular four weeks to the 15th or the end of the month. Notice of cancellation can be given on any day.

Waiting period according to the Dismissal Protection Act

The Dismissal Protection Act (KSchG) only applies after a period of Waiting period of six months (Section 1 (1) KSchG). During this period, the employer does not have to give a reason for the dismissal and does not need a social justification for the dismissal. This waiting period applies regardless of whether a probationary period has been agreed.

Notice periods during the probationary period - all the details

The statutory period of notice during an agreed probationary period is two weeks (Section 622 (3) BGB). Notice of termination can be given on any day - there are no fixed dates such as the 15th or the end of the month.

Period	Cancellation period	Cancellation date
During the probationary period (max. 6 months)	2 weeks	Every day
After the probationary period (up to 2 years)	4 weeks	At the 15th or end of the month
From 2 years of service	1 month	At the end of the month
From 5 years	2 months	At the end of the month
From 8 years	3 months	At the end of the month

Attention: Collective agreements or the employment contract may provide for different periods. Some collective agreements even exclude a probationary period altogether or restrict the cancellation options. You should therefore always check the applicable collective labour agreement.

Deadline calculation: The two-week period begins with the receipt of the notice of termination. If the notice of termination is received on the 10th of a month, the employment relationship ends on the 24th of the same month. Important is the Access of the cancellation - not the date on the cancellation letter.

Cancellation on the last day of the probationary period: Notice of termination must be given no later than the last day of the probationary period. approach, in order to benefit from the shortened period. The employment relationship then ends two weeks after receipt - i.e. only after the end of the probationary period. The shortened period nevertheless applies because it depends on the time of the Access arrives.

Termination of probationary period - special protection against dismissal

Even if the General Protection against Dismissal Act does not yet apply during the first six months, certain groups of people enjoy special protection:

Maternity protection (§ 17 MuSchG)

Pregnant employees also enjoy the same rights during the probationary period. absolute protection against dismissal. Dismissal is only possible with the prior consent of the competent authority - and is almost never granted in practice. Protection begins from the first day of pregnancy, provided the employer is aware of this or is informed within two weeks of receiving the notice of termination.

Important: Even if you only find out about the pregnancy after receiving the notice of termination, you can still inform the employer within two weeks and the termination will become invalid.

Parental leave (§ 18 BEEG)

From the point at which parental leave is requested (at the earliest 8 weeks before it begins), there is special protection against dismissal - even during the probationary period. Dismissal is only permitted with the approval of the competent authority.

Severe disability (§ 168 SGB IX)

Severely disabled and equivalent employees enjoy special protection against dismissal in accordance with Section 168 SGB IX. However, this only applies after six months - There is therefore no special protection for severely disabled employees during the probationary period. However, the dismissal must not because of the disability (prohibition of discrimination according to AGG).

Works Council members

Works council members enjoy special protection against dismissal in accordance with Section 15 KSchG. Ordinary dismissal of a works council member is also possible during the probationary period. inadmissible. Only extraordinary dismissal with the consent of the works council or replacement by the labour court is possible.

General Equal Treatment Act (AGG)

Even during the probationary period, termination for discriminatory reasons is not permitted. Dismissal on grounds of:

• Gender or sexual identity
• Ethnic origin or race
• Religion or world view
• Disability
• Age

If the employee can provide evidence of discrimination, the employer must Employers prove, that there is no violation of the principle of equal treatment (§ 22 AGG).

Works council consultation (§ 102 BetrVG)

Even in the event of termination during the probationary period, the Works Council consulted if one exists in the company. A dismissal issued without proper consultation with the works council is Ineffective - This also applies during the probationary period.

Immorality and breach of trust

Even without the general protection against dismissal under the KSchG, a dismissal is invalid if it immoral (§ 138 BGB) or unfaithful (§ 242 BGB). This is the case, for example:

• Termination in retaliation for the assertion of justified claims (prohibition of measures, Section 612a BGB)
• Termination for a reprehensible purpose
• Dismissal in disregard of a minimum level of social consideration

Termination during the probationary period - your options

If your probationary period is terminated, you should act immediately:

1. Have the cancellation checked: Even if the protection against dismissal is limited, there are numerous grounds for invalidity. Attorney Reichelt will examine your dismissal comprehensively.
2. Observe deadlines: The following also applies to a probationary period 3-week deadline for an action against dismissal (Section 4 KSchG). If you miss this deadline, the dismissal becomes final - even if it was unlawful.
3. inform the employment agency: Get in touch at the latest three months before the end of the employment relationship - in the case of short notice periods, immediately after becoming aware of the termination.
4. Negotiate: In some cases, it is possible to negotiate the terms of the termination - for example, a good certificate of employment, a leave of absence or even a severance pay.

Cancellation agreement as an alternative to termination during the probationary period

Instead of a probationary period, the employment relationship can also be terminated by a Cancellation agreement be terminated. The employer and employee agree on the termination by mutual consent. A cancellation agreement can be useful during the probationary period if:

• Both sides are dissatisfied: The cancellation agreement enables a quick, amicable separation
• Better conditions can be negotiated: A good reference, a leave of absence or even a severance payment can be agreed in the cancellation agreement
• The notice period is to be circumvented: In the event of a new job offer, the cancellation agreement can allow you to leave the company immediately

Be careful with cancellation agreements: A cancellation agreement can lead to a Blocking period for unemployment benefit (usually 12 weeks) if the employment agency considers the termination to be „voluntary“. You should therefore seek advice from Mr Reichelt before signing a termination agreement.

Right of cancellation: In contrast to many contracts, a cancellation agreement does not provide for No statutory right of cancellation. Once you have signed, the contract is binding. Cancellation is only possible in the event of deception, threat or error. You should therefore always take the draft contract home with you and have it checked.

Termination by the employee during the probationary period

As an employee, you can also terminate your contract during the probationary period with a notice period of two weeks cancel. Please note:

• Written form: The cancellation must be made in writing with an original signature (Section 623 BGB). Cancellation by email, text message or WhatsApp is invalid.
• No blocking period: If you resign from your job, there is generally a risk of unemployment benefit being suspended. During the probationary period, however, the employment agency will often refrain from imposing a blocking period if there are comprehensible reasons (e.g. unreasonable working conditions, Bullying).
• Testimonial: Even after a termination during the probationary period, you are entitled to a certificate of employment.

Fixed-term employment contract and probationary period

In the case of fixed-term employment contracts, ordinary termination is only possible, if this has been expressly agreed in the contract (Section 15 (4) TzBfG). Without such an agreement, the fixed-term employment relationship cannot be terminated by either the employer or the employee - the fixed term then runs until the agreed end.

If a probationary period is agreed in the fixed-term contract and ordinary termination is permitted, the same shortened deadlines apply as for open-ended contracts.

Frequently asked questions about termination during the probationary period

Can the employer terminate the contract without cause during the probationary period?

In principle, yes - the general protection against dismissal under the KSchG only applies after six months. However, special protection rights apply (maternity protection, prohibition of discrimination, works council consultation) as well as the prohibition of immoral dismissals.

How long is the notice period during the probationary period?

If a probationary period has been agreed, the deadline is two weeks to each day. Without an agreed probationary period, the regular deadlines apply - four weeks to the 15th or end of the month.

Do I get a severance payment if I am dismissed during my probationary period?

As a rule, there is no statutory entitlement to severance pay during the probationary period. In individual cases, however, a severance payment can be negotiated, especially if the dismissal is legally contestable.

Does the employer have to consult the works council during the probationary period?

Yes, the works council consultation in accordance with Section 102 BetrVG is also mandatory in the case of a probationary period termination. Without proper consultation, the dismissal is invalid.

Can I be dismissed due to illness during my probationary period?

Yes, dismissal due to illness is generally possible during the probationary period, as the KSchG does not yet apply. However, the dismissal must not violate the prohibition of reprimands or be discriminatory.

What happens if the probationary period is extended?

An extension of the probationary period beyond six months is generally Not permitted. This means that even if an „extended probationary period“ of nine months, for example, is agreed in the employment contract, the shortened notice period only applies for the first six months. After that, the regular notice periods apply - regardless of the term in the contract.

Am I entitled to remaining holiday after termination during the probationary period?

Yes, you are entitled to 1/12 of your annual leave for each full month of employment. If the holiday can no longer be taken, it must be compensated. With annual leave of 24 working days, you are entitled to 2 days' leave per month.

Termination without notice during the probationary period

In addition to ordinary termination with two weeks' notice, the employment relationship can also be terminated during the probationary period. Cancelled without notice both the employer and the employee. Termination without notice (for cause) after § 626 BGB is, however, subject to strict conditions.

Prerequisites for termination without notice

Termination without notice is only effective if a important reason that makes it unreasonable for the terminating party to continue the employment relationship even until the end of the ordinary notice period. The hurdle is particularly high during the probationary period, as the ordinary notice period is only two weeks anyway.

Typical reasons for termination without notice during the probationary period are

• Theft or embezzlement at the workplace - even for low-value items
• Working time fraud - e.g. false stamping or feigned incapacity for work
• Serious offence from superiors or colleagues
• Assaults or threat of violence
• Persistent refusal to work despite warning
• Violation of non-compete obligations - e.g. secondary employment with a competitor
• Serious breach of trust - e.g. disclosure of trade secrets

Warning before termination without notice?

In principle, prior to a termination without notice, a Warning letter unless the relationship of trust is so severely disturbed that a warning would no longer make sense. In the case of theft or fraud No prior warning is required. In the case of breaches of duty such as unpunctuality or poor work performance, however, a warning is mandatory.

Observe the two-week deadline

Notice of termination without notice must be given within two weeks after becoming aware of the reason for termination (Section 626 (2) BGB). If the employer misses this deadline, it can no longer invoke the reason for termination - the only remaining option is ordinary termination.

Rights of the employee in the event of termination without notice

You can also defend yourself against dismissal without notice during the probationary period. You have the right:

• Within three weeks To file an action for unfair dismissal with the labour court
• The Reasons for cancellation (in writing upon request, Section 626 (2) sentence 3 BGB)
• On Continued payment of wages until the legally binding decision if the cancellation is invalid

Important: In the event of termination without notice, there is a risk of Blocking period for unemployment benefit of up to 12 weeks. Attorney Reichelt will check whether the termination without notice is effective and what options you have.

Cancellation probationary period - checklist for employees

If you have received a notice of termination during your probationary period, you should check the following points immediately:

1. Written form: Has the cancellation been made in writing with an original signature? A verbal cancellation or by e-mail is invalid (§ 623 BGB).
2. Cancellation period: Has the two-week deadline been met? Check the receipt and calculation carefully.
3. Trial period agreed: Has a probationary period actually been effectively agreed in the employment contract? Without an explicit agreement, the regular notice periods apply.
4. Special protection against dismissal: Do you fall under a specially protected group of persons (pregnancy, works council, parental leave)?
5. Works Council: Has the works council been properly consulted, if one exists?
6. Collective labour agreement: Does an applicable collective agreement provide for deviating regulations?
7. Discrimination: Are there any indications that the dismissal was for a reason prohibited under the AGG?
8. 3-week deadline: Make a note of the last day for a possible action for protection against dismissal - this deadline is non-renewable.

In case of doubt: Have the cancellation checked by a lawyer immediately. Attorney Reichelt offers a free initial assessment and advises you on your options - whether Action for unfair dismissal, Negotiation of a severance pay or a good certificate of employment.

This article is intended to provide general information and does not replace individual legal advice. For advice tailored to your case, please contact Lawyer Martin Reichelt in Dresden.